Dear New York: Please Make Subway 'Grinding' a Felony. Now.

The New York City subway system got a little less safe earlier this month when Darnell Hardware, indicted last summer on three felony charges of sexual abuse, was reportedly set free on probation. Hardware's crime, as described by the Manhattan district attorney, is a rather unsettling one for transit riders throughout the city (if not humanity in general):

The defendant entered a crowded subway train during rush hour, pressed his body against a female victim, and rubbed his penis on her. Because of the crowded subway car, the women were unable to move away from the defendant, who ejaculated on the women’s bodies and clothing, and then fled. … The victims were young women commuting to and from work or school.

The injustice of the decision is surpassed only by the injustice of the precedent that caused it. That ruling occurred in March during the case of one Jason Mack, who committed a similar act of "subway grinding" back in 2002. The complete brief on Mack's deed can be read here (via Gothamist), but here's a summary from the New York Court of Appeals, the state's highest legal authority — again, be forewarned, it's disturbing [PDF]:

During the morning rush hour on March 22, 2002, a teenage girl on her way to school got on a packed subway train in Manhattan. She stood just inside the train's door as a tall and "very heavy" man "pushed himself in so that he was behind" her. Once the doors closed and the train started to move, the girl felt some "weird movements" on her lower back, which she attributed to the swaying of the train and the press of passengers. When she turned in the man's direction, though, the touching sensation would stop; it resumed when she turned back around. She tried to "move more to [her] right" to avoid this man, but she was hemmed in by the crush of commuters. The man left the train one station after he got on. When the girl eventually got off the train, she noticed semen on her jeans and coat. Upon her arrival at school, she reported the incident to school officials, who called the police.

If these descriptions are uncomfortable to read, imagine how awful they must have been to experience. Apparently the Court of Appeals could not. In a unanimous decision, the court ruled that Mack was not guilty of first-degree sexual abuse, which is a felony, because his action wasn't compelled by physical force.

A bit more about the laws in question. The first-degree felony that Mack faced requires a person to subject someone to sexual contact by "forcible compulsion." Meanwhile third-degree sexual abuse, which is a misdemeanor, requires only "sexual contact without the latter's consent." The court affirmed a prior ruling that subway grinding used "stealth," not "physical force," and therefore wasn't a felony:

Here, there was no coordinated action by defendant and other passengers to hedge in the victim. Rather, the crowded conditions in the subway car merely masked and facilitated the unwanted sexual contact alleged. The sexual contact itself is the only physical force that defendant may be said to have deployed against his victim. This is not enough to establish that the sexual contact was "compel[led] by ... use of physical force."

In other words, the fact that the situation made it easier for these criminals to exploit their perverse intentions rendered them lesser criminals. In some sense the court may be correct that they're not as reprehensible as someone who uses violence as a prelude to a sex crime. That said, if a man rapes a woman who's passed out, that man may not be a violent rapist, but he's still a rapist. What we have here feels more appropriate differentiated by adjectives than criminal degrees.

The problem of transit fondlers, grinders, sex abuses, etc., isn't unique to New York, of course. As Daniel Krieger reported earlier this year, many cities around the world now offer women-only transit options to avoid the sexual abuse that all-too-often occurs in crowded public transportation. New York's transit authority expanded the video surveillance system for its buses earlier this year, and it may be time to consider doing the same for the subways.

Then again, catching the criminals wasn't the problem here. (In both cases the police ultimately identified the perpetrators through the state's growing DNA database.) A few days ago Bill de Blasio, the city's public advocate, told WCBS he'd like to see legislation that increased subway grinding to a felony and required registration as a sex offender. City Councilman Peter Vallone did the same, according to the Daily News. The paper concludes, in an editorial:

By calculatedly choosing victims who had no escape, Mack and Hardware forced women to undergo sexual abuse just as surely as if they had done so with a bear hug. That’s the real world, a place the court chose to ignore. Cuomo and the Legislature must step in to reinstate the legal protections that women deserve.

After all, what better way to demonstrate the truly forceful nature of this crime than moving offenders from a crowded subway car to a crowded prison.